United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/29498/2015

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Decision & Reasons Promulgated
On 15 November 2017	On 29 November 2017

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

 

 

Between

 

the Secretary of State for the Home Department

Appellant

and

 

SERWA BONSU

(no anonymity order made)

Respondent

 

 

Representation :

For the Appellant: Mr I Jarvis, Home Office Presenting Officer

For the Respondent: Mr A Kaihiva, Counsel

 

 

REMITTAL AND REASONS

 

1.           This is the Secretary of State's appeal against the decision of First-tier Tribunal Judge Majid allowing the appeal of Mrs Serwa Bonsu against the decision of the Secretary of State of 16 June 2015 refusing to grant her a Permanent Residence Card pursuant to the Immigration (EEA) Regulations 2006 (as they then were), on the basis that she had not proved she had retained a right of residence and had lived in accordance with the EEA Regulations for a continuous period of five years.

2.          The Secretary of State challenges that decision on the basis that Judge Majid misdirected himself in law and failed to take into account and resolve conflicts of facts on material matters.

3. Permission to appeal was granted by First-tier Tribunal Judge Page on 18 September 2017 on all grounds in the following terms:

"The respondent's grounds of appeal are clearly arguable in complaining that the judge in allowing the appeal, has failed to address the core reason for refusal that the respondent was not satisfied that the appellant's EEA former spouse was exercising free movement rights in the United Kingdom at the time of divorce. The respondent complains that the judge did not consider and address the respondent's reasons for refusing the appellant's application. The respondent is entitled to know why the appeal has been allowed. The judge's decision contains much self-direction and recitation of case law it does not appear to engage with what the respondent decided in refusing the appellant's application for leave to remain. At paragraph 20 the judge has said:

"20. A review of all the evidence adduced by the appellant convinces me that her appeal should be allowed. Wherever one feels that the case misses the point marginally the judicial discretion should help her in light of the facts as detailed in paragraph 12 above."

Paragraph 12, however, does not engage with the respondent's reason for refusing and it had not been shown the appellant's EEA former husband had been exercising treaty rights in the United Kingdom. Under the heading "The Relevant Law" the judge, at paragraphs 18-27 set out several paragraphs end with the judge saying that he has given "respect to the intention of the House of Commons dictated by the supremacy of Parliament" and then said that there are good reasons to allow the appeal as detailed in paragraph 12 of the decision. There is no reference to these paragraphs to EEA Regulations 2006 which both the respondent's decision was made and the appellant's appeal brought." (sic)

4.           Since the grant of permission to appeal, the Upper Tribunal has issued the decision in MM & Ors v The Secretary of State for the Home Department, The Secretary of State & Ors AA/06906/2014. That decision, although unreported, is relevant to the circumstances of this appeal since it contains a comprehensive criticism of the decision style of Judge Majid:

"It seems to us that the complaints made about Judge Majid's decisions are entirely well-founded. Nobody reading them could detect how the judge reached the conclusion he did, acting within the law and applying the relevant substantive law to the facts as found. That is partly because the law and the facts are never the subject of any detailed reference, disputes on the facts are not identified, and there are next to no findings of relevant fact; more seriously it is because the Judge's statements in his decisions, either by direct assertion or by disquisition on the irrelevant, give real reason to suppose that he is not even trying to act within the law and apply the relevant substantive law to the facts as found.

47.  We regard the body of his work that we have examined in the course of these appeals as wholly failing to meet the standards that are demanded by the office of a judge and expected by the parties. As a result, every one of the decisions under appeal shows error of law, in most cases serious error, in most cases multiple serious errors. Whether the decisions are looked at together or separately, they show that nobody should assume that Judge Majid has an adequate knowledge of the law or of his task as a judge. If his decisions continue to have the features we have identified in the foregoing examination, they are clearly open to criticism."

5.      This decision contains similar standard paragraphs that the Upper Tribunal were critical of, but      even without that criticism, I am satisfied for the reasons accurately identified in the grant of permission that the reasoning of Judge Majid in this appeal is unsound and his decision unsustainable. Mr Kaihiva's defence of the Decision on the basis that the Secretary of State's grounds raise factual conflicts that were not raised in the refusal and that Judge Majid dealt with the evidence is totally without merit. Mr Kaihiva was not able to make good his submissions by reference to the Decision and the evidence and upon scrutiny it transpired that his submissions were founded upon an earlier refusal not the subject of this appeal.

6. In the circumstances, there is no alternative to setting the decision aside and remaking it afresh.

Conclusions

7.           For the foregoing reasons, my decision is as follows:

(i) The First-tier Tribunal Decision involved the making of an error on a point of law.

(ii) I set aside the Decision of the First-tier Tribunal. The appeal will be remade in the First-tier Tribunal before a Judge other than First-tier Tribunal Judge Majid.

 

Signed : Dated: 27 November 2017

 

Deputy Upper Tribunal Judge Bagral